The Federal Energy Regulatory Commission (FERC) issued a Certificate of Convenience and Public Necessity to the Mountain Valley pipeline project in 2017, authorizing new construction of a 300-mile natural gas pipeline through West Virginia and Virginia. Several environmental and citizen groups challenged the FERC decision in the D.C. Circuit Court of Appeals. Among many issues raised, the petitioners argued that FERC failed to properly consider downstream impacts on climate change resulting from the combustion of gas transported by the new pipeline, as required by the Court’s 2017 decision in Sierra Club v. FERC. On February 19, 2019, the D.C. Circuit issued a short (five page) decision in the Mountain Valley case, Appalachian Voices et al v. FERC . The decision summarily dismissed all sixteen of the petitioners’ challenges to FERC’s Order.

Most notably, the Court dismissed petitioners challenge to the NEPA climate change issue, addressed in the Court’s 2017 Sierra Club decision. In that case, the D.C. Circuit held that FERC was required to “either quantify and consider the project’s downstream carbon emissions or explain in more detail why it cannot do so,” citing the petitioners’ choice in that case of the “Social Cost of Carbon” analytical tool and requesting FERC to explain its position on the tool. On remand from the Court’s Sierra Club decision, FERC noted that there was insufficient data to quantify all downstream climate change impacts, and that the Social Cost of Carbon tool did not properly address pipeline project factors.

In this most recent opinion, the D.C. Circuit held that FERC’s analysis was sufficient under NEPA because “FERC provided an estimate of the upper bound of emissions resulting from end use combustion, and it gave several reasons why it believed petitioners preferred metric, the Social Cost of Carbon tool, is not an appropriate measure of project-level climate change impacts and their significance under NEPA or the Natural Gas Act.” The Court explained that FERC’s analysis is sufficient to comply with NEPA and the prior D.C. Circuit precedent in Sierra Club. With respect to the Social Cost of Carbon tool, the Court noted that the petitioners did not provide an alternative to that tool or present any arguments to counter FERC’s reasons that the tool is not an appropriate measure of project-level climate change impacts. The Court also dismissed petitioners’ argument that the Mountain Valley project had failed to show a market need for the new pipeline, especially since the shippers who had signed on to the project were all corporate affiliates (holding that FERC’s decision that “a shipper’s need for new capacity…[is] not lessened just because it is affiliated with the project sponsor”).

Perhaps the most notable aspect of this decision, however, is that the Court chose to issue it as an unpublished decision. Since 2002, under the D.C. Circuit’s version of the Federal Rules of Appellate Procedure (FRAP), unpublished memoranda “may be cited as precedent” (prior to 2002 they could not be cited as precedent). D.C. Cir. FRAP 32.1(b). But under local FRAP Rule 36(e)(2), even though unpublished memoranda may be cited as precedent, “an unpublished disposition means that the panel sees no precedential value in that disposition.” In addition, Local FRAP Rule 36(d) states that an “abbreviated disposition” implies “no need” for that decision to be published.

It seems likely that the Court chose to issue the Mountain Valley decision, Appalachian Voices et al., as an unpublished memoranda to avoid creating an appearance of any conflict with its 2017 Sierra Club decision. All parties may be dissatisfied with the result; the petitioners because they did not get the relief they expected to be in accordance with the Sierra Club decision, and the respondent (and the pipeline industry) because they cannot cite this case will full precedential value in other judicial proceedings. The D.C. Circuit rule allows any party to request that unpublished memoranda be converted to a fully precedential published decision (pursuant to Local FRAP Rule 36(f)). Such motions, however, “are not favored and will be granted only for compelling reasons.” Id. The petitioners can also file a petition for rehearing (before a three judge panel) or a rehearing en banc (before all judges in the D.C. Circuit). For all of these reasons, we may see more activity regarding this case in the near future.

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